Communicated on 11 October 2016

FIFTH SECTION

Application no. 30460/08 Leonard Dimitrov SAPUNDZHIEV against Bulgaria lodged on 30 April 2008

STATEMENT OF FACTS

The applicant, Mr Leonard Dimitrov Sapundzhiev , is a Bulgarian national who was born in 1963 and lives in Silistra .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background

In 2003 an individual installed a printing house in a building situated in close proximity to the building where the applicant was living with his family. Shortly after the printing house began operating, the applicant and his family started resenting the nuisance it was causing. In particular, they found the constant pungent smell of ink and solvents intolerable; also, they were continuously disturbed by the vibrations caused by the printing machines, which reverberated through the walls of their dwelling. Moreover, as time went by, the applicant ’ s young daughter developed a severe allergy to the chemicals used in the printing process and had to take daily medication to keep it under control.

2. Complaints to the authorities and their related action

Between July 2006 and August 2007, the applicant turned to several State institutions, including regional branches of the hygiene and epidemiological inspectorate, the public health directorate at the Ministry of Health, the regional building inspectorate, the mayor of Silistra and the prosecution service. He complained to them in writing about the nuisance caused by the printing house, which he claimed was operating contrary to a number of legal requirements found in different ministerial regulations, the relevant provisions of which he specifically referred to. He also asked the authorities for help in forcing the printing house to cease its operations.

More specifically, the chronology of his correspondence with the authorities can be traced as follows.

(a) Complaints in 2006

On 15 August 2006, in a brief one-paragraph letter in reply to a complaint made by the applicant on 31 July 2006, the director of the regional agency for public health ( Регионална инспекция за опазване и контрол на общественото здраве – hereinafter “the public health agency”) informed the applicant that on 10 August 2006 two junior inspectors from the agency had visited the printing house in question. The inspectors had established during that visit that two printing machines (without specifying their type, power or capacity) were operating at that time in the printing house and that this number was in line with the requirements set out in Regulation No. 7 of 1992 of the Ministry of Health. The letter invited the applicant to propose a day and time for the measuring of the noise generated by the printing house.

Two days later, on 17 August 2006, the applicant together with three of his neighbours complained in writing to the public health directorate at the Ministry of Health that the printing house was operating in contravention of relevant legal requirements. On 22 August 2006, the applicant and the same three neighbours wrote again to the same directorate expressing concern about and dissatisfaction with the manner in which the measurements in respect of noise and air pollution had been taken on 18 August 2006. In particular, two individuals who had not shown any credentials had turned up and measured the noise with a machine which had not reacted to sudden high-pitched noises but was set up to measure only background noise. Furthermore, when the applicant invited the inspectors to also measure the purity of the air, one of them opened the window, sniffed the air and stated that it was not that bad, and that in all likelihood it would turn out to be within the relevant norms when measured. The applicant further stressed in the letter that the printing house was operating in close proximity to inhabited dwellings, whereas according to the relevant regulations this was prohibited within less than 50 metres of such buildings.

The applicant and his three neighbours also wrote to the building inspectorate on 23 August 2006, complaining that the printing house had been built in contravention of the relevant construction norms.

On 25 August 2006 the Ministry of Health wrote to the public health agency, asking that a check be carried out and the applicant informed of the results accordingly. On 29 August 2006 the Ministry of Health issued an instruction to the owner of the printing house, inviting him to bring the noise levels generated by his business within the limits stipulated in the relevant regulations.

On 30 August 2006, apparently in reply to the applicant ’ s letter of complaint of 31 July 2006, the head of the public health agency informed the applicant that: the chemical agents identified at the work stations at the printing house in question were within the limits listed in Regulation No. 13 of 2003 for the protection of individuals exposed to chemical agents at their work station; the noise reaching the applicant ’ s home when the windows were open, as well as the dwelling of one of his neighbours, was not in conformity with the requirements of Regulation No. 6 of 2006; and that instructions had been issued to the owner of the printing house to ensure that the noise levels produced by his business were brought within the legal limits.

On 5 October 2006 a representative of the Ministry of Health wrote to the applicant informing him that staff from the public health agency had carried out two checks at the printing house; neither the dates of those checks, nor any further details about them were mentioned. The letter then read that on 18 August 2006 officials had measured the reverberating noise and the chemical agents produced at the printing house. As the noise levels had been found to be beyond the legal limits, the owner had been instructed to lower them by 29 October 2006.

On 27 October 2006 the applicant and his three neighbours wrote to the Ministry of Health, expressing their dissatisfaction with the reply they had received on 5 October 2006. They reiterated that the printing house was surrounded on three sides by inhabited dwellings, in which a number of small children lived. They referred to point 393 of Regulation No. 7 of 1992, which prohibited the installation of printing houses less than 50 metres from inhabited buildings and to the fact that the owner of the printing house had not obtained an agreement from any of his neighbours for installing his business at that location. They pointed out too that the noise levels had not been lowered, contrary to the authorities ’ instructions, and stressed that the record which they had signed on the day when the noise measurements had been taken had indicated 58 decibels and not 38 as stated in the record included in the file. They asked once again that the authorities order the printing house to cease its operations on the grounds that they were breaching point 393 of Regulation No. 7 of 1992.

(b) Complaints in 2007

On 20 August 2007 the applicant and four of his neighbours wrote to the regional inspectorate for the environment and water in Ruse ( Регионална Инспекция за Околната Среда и Водите ). They stated that although the printing house had been apparently functioning on the basis of a lawful permit since 2003, given that it was located in a densely populated area, in their opinion, this was inappropriate. The letter then listed the exact name of the machines operating at the printing house and the type of ink used. The applicant and his neighbours further pointed out that, according to Regulation No. 7 of 1992 of the Ministry of Health, printing houses had to be located at least 50 metres from inhabited dwellings and that the printing house in question was joined on three sides to the complainants ’ dwellings. The printing business in question had been formally registered as “a workshop for printing services with up to two work stations” and not as a “printing house”; in this way it had successfully circumvented the legal requirements applicable to printing houses, despite the fact that the notice exhibited at its entrance read “printing house” ( печатница ). The letter further stated that in reality, for a number of consecutive years, more than two people had been working at the printing house at any given time. The applicant and his neighbours had learned from the staff that no antidote was being given to them; this was obligatory as protection against carcinogens present in printing inks and solvents used to clean the machines (up to ten times a day on a busy day). The authors of the letter then wondered whether they as well as the people living in the immediate vicinity of the printing house should also have been taking such antidotes. The applicant ’ s daughter had developed an allergy towards some of the chemicals used by the printing house and was taking daily medication called Zertec . Whenever the door of the printing house was opened a pungent smell entered directly into the bedroom of the applicant ’ s children, the window of which was situated directly opposite it at about seven metres ’ distance. Like the staff at the printing house, the applicant and his neighbours suffered frequently from headaches, their washing turned grey whenever it was hung to dry and the noise produced by the machines when operating was unbearable. In particular, at the house of one of the applicant ’ s neighbours the noise was so loud it was as though an earthquake had started every time the guillotine was operating. The applicant and his neighbours had sought a copy of the original record signed at the time the noise had been measured but had not received one. The letter concluded that the residents whose dwellings adjoined the printing house were doomed to bringing up their children for the foreseeable future in an environment of noise and chemicals, without any guarantee for their health and normal development. One of the staff working for several years at the printing house had developed a brain tumour, which was a source of serious worry for everyone in the vicinity. The applicant and his neighbours were also worried that the owner did not wish to hear any suggestion of moving his printing business away, but insisted that it was harmless as he preferred to profit from the commercial advantages a central location offered. The letter ’ s authors then invited the authorities to carry out an unannounced nuclear magnetic resonance spectrometry in order for the community to learn about the poisons they were being exposed to, as well as to proceed with closing down the business. They enclosed a copy of the 810 signatures collected in support of their cause.

On 10 September 2007 the head of the Ruse regional inspectorate for the environment and water wrote to the applicant in reply to the letter of 20 August 2006. The reply stated that two experts sent by the inspectorate had carried out a check-up on 20 August 2006 at the printing house in the presence of its owner. The conclusions of the check-up were that the printing house was operating on the basis of a permit issued by the building authorities on 25 July 2003. The type of operation – offset printing on sheets of paper – was not among the operations listed in Annex I of Regulation No. 7 of 2003 on limiting emissions of volatile organic compounds released into the environment as a result of the use of solvents in certain installations. Lastly, the noise emissions had been measured at 49.7 dB, which was lower than the legal limit of 60 dB to be found in Annex II – Table 2, point 2 of Regulation No. 6 of 26 June 2006.

3. Posters exhibited in the applicant ’ s own shop

In addition to his appeals to the above-mentioned institutions, the applicant decided to attract public attention to what he perceived as problems for him and his family emanating from the operations of the printing house. He produced for that purpose some posters calling on the community in the town of Silistra to express support for the termination of the printing house ’ s operations. The text on the posters claimed that the printing house had been licensed in breach of the relevant legal requirements and that the pollution it was causing was harmful to the people living in the vicinity.

More specifically, the posters stated the following:

“Printing house ‘ T. ’ with manager V. S. V. exists for five years now in the centre of this town, surrounded closely by residential buildings, in gross breach of the applicable sanitation norms adopted by the Ministry of Health and of European requirements, poisoning daily the people living around it.

The printing house exists thanks to:

1. Engineer I. A. – mayor of Silistra ;

2. Dr M. P. – Director of the regional agency for health control under the Ministry of Health, and chairperson of the municipal council;

3. Architect O. – Chief Town Architect;

4. Engineer G. – Director for Regional Building Control, Silistra ;

5. M . I. S. – a staff member in the municipality of Silistra .”

Another poster contained the following words:

“SIGNATURE COLLECTION for the protection of Silistra children”

[A photograph of the applicant ’ s young daughter was followed by the text below]

“This is A., systematically poisoned by the chemicals of printing house ‘ T. ’ for four years now. As a consequence – a severe form of allergy, dooming her to having to take medication for the rest of her life.

CITIZENS of Silistra ,

Let us save our children. Let us place their life and health above everything else. Tomorrow your child could be in A. ’ s place.

For the immediate termination of the operations of printing house ‘ T. ’ with manager V. S. V., which exists in the centre of town in gross breach of the law and the mandatory sanitation rules and norms in Bulgaria.

Let us save our children by starting here. Support us with your signature.

With gratitude – Leonard Sapundzhiev and his family.”

Another page of text listed parts of three regulations issued by the Ministry of Health and the Ministry of Regional Development. Those were Regulation No. 7 of 1992 on the sanitary requirements for the urban environment, the regulation on the protection of public order and public health in the Silistra municipality, and Regulation No. 7 of 2003 on the rules and regulations for different development zones. According to the specific provisions cited by the applicant on the posters, printing houses had to be located at least 50 metres away from inhabited dwellings; operations which polluted beyond the legal threshold – via chemicals, gases, soot, dust or noise – were banned in and around inhabited buildings; the blind wall of an existing building had to be fully covered by the blind wall of a newly built neighbouring building; and, no industrial building or similar facility releasing noise beyond the applicable norms and other harmful effects could be installed next to such a [blind] wall. The poster also stated that Bulgarian legislation required the agreement of the neighbours, given in writing and certified by a notary, before a dwelling meant for human occupation could be converted into a building for industrial purposes, and that no such agreement had ever been given by the neighbours to the printing house ’ s owner.

The applicant exhibited the posters described above in the windows of his own shop, which was situated close to both his home and the printing house. The posters were exhibited apparently between 12 December 2006 and 22 February 2007, and within a little over a month the applicant had collected more than 800 signatures from individuals in support of his cause.

4. Complaints to the prosecutor

The owner of the printing house complained to the prosecutor about the applicant ’ s actions. On 5 January 2007 the Silistra district prosecutor refused to open criminal proceedings against the applicant, finding that the matter concerned the privately prosecutable offence of defamation, for which the printing house owner could bring proceedings himself.

On 19 January 2007 a different prosecutor from the same office refused to open criminal proceedings following a complaint by the applicant against the owner of the printing house that the latter had been operating in breach of the relevant legal requirements.

5. Proceedings for defamation brought against the applicant

The owner of the printing house, V.V., brought defamation proceedings against the applicant under the 1968 Criminal Code. V.V. complained in particular that the applicant ’ s actions had damaged his printing business and his personal reputation.

The applicant ’ s three neighbours, who together with the applicant had been continuously complaining to the authorities, submitted a signed declaration in support of the applicant. They stated that, irrespective of all the different permits which the printing house might have obtained from the authorities, this did not change the fact that it was causing a chemical and noise-related nuisance to the community on a daily basis.

(a) At first instance

On 5 June 2007 the Silistra District Court found the applicant guilty of libel. It held that he had defamed V.V. by complaining in writing to various institutions about the latter ’ s printing operations and by printing and publicly disseminating material which claimed that the printing business was operating unlawfully. More specifically, the applicant had not submitted proof showing that his complaints to the authorities and the claims he had made in the posters were true. While officials from the Ministry of Health had indeed established that the noise emitted by the printing house had been beyond the authorised limits, the authorities had instructed its owner to bring it within the relevant norms and had given him a deadline, with which he had complied. The court then stated, without giving any further detail, that as seen from a chemical agents inspection report bearing the date 25 August 2006 and from the subsequent explanations of the person who had carried out the check, it was clear that measurements had been taken throughout the working process at the printing premises and that the level of the chemical agents measured was not above the norms.

As to the claim that the printing house had been set up in breach of Regulation No. 7 of 2003, that was impossible as the said regulation had become applicable as of 13 January 2004, whereas the printing business had been lawfully operating since 25 July 2003. In respect of the claim that Regulation No. 7 of 1992 had also been breached, the court found that while point 393 of that regulation indeed provided that printing houses had to be at least 50 metres away from inhabited dwellings, this only concerned “printing houses”, while the business in question had been registered as a “workshop for printing services and a shop with an office”, which was clearly entirely different from what had been provided for in the regulation. Moreover, this was far from being the only workshop of its type in the country.

As to the absence of an agreement signed by a notary and given by the co-owners of the property in which the printing workshop had been installed, this question had to be the subject of separate administrative proceedings and the applicant was wrongly attempting to make it a part of the criminal proceedings for defamation against him. The applicant had claimed that the printing owner had been harassing and threatening him and members of his family; however, those claims had remained unproven.

The allegation that the applicant ’ s daughter had developed an allergy had also remained entirely unproven, given that the applicant had presented as evidence only a medical document stating that she was suffering from “bronchitis”. The court went on to say that “every biological parent of average intelligence whose child was frequently ill had to know that respiratory diseases were the most frequent ones in early childhood”.

The court concluded that, given that the applicant ’ s statements were factually wrong, they had inevitably damaged the printing house owner ’ s reputation. That amounted to defamation, which was in breach of the law and had to be sanctioned.

The court then waived the applicant ’ s criminal liability and imposed on him an administrative penalty in the form of a fine in the amount of some 250 euros (EUR). It further held that the applicant had to pay EUR 500 in compensation to V.V. and about EUR 10 in court fees.

(b) At final instance

Following an appeal by the applicant, the Silistra Regional Court upheld the first-instance court ’ s findings in a final judgment of 30 October 2007. It observed that the relevant authorities had carried out a number of inspections at the printing house in question in response to the applicant ’ s complaints. Contrary to the applicant ’ s allegations, none of those checks had established either a breach of the relevant legislation or the existence of pollution caused by the printing house. Despite this, the applicant had continued to disseminate false and discrediting information about V.V. by exhibiting posters on the windows of his own shop.

The court agreed with the finding at first instance that the applicant could not be absolved from responsibility as he had been unable to prove the veracity of his allegations. It further found that, if anything, the punishment had been too lenient; it had certainly been neither excessive nor unfair.

B. Relevant domestic law and practice

Article 147 of the Criminal Code 1968 provides as follows:

“1. Any person who disseminates an injurious statement of fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by a public reprimand.

2. The perpetrator shall not be punished if he or she proves the truth of the said statement or imputation.”

The mens rea for the offence of defamation can only be direct intent or oblique intent (recklessness), not negligence (Article 11(4) of the Code).

According to the prevailing case-law of the Bulgarian courts ( решение № 128 от 10 март 1973 г. по н. д. № 37/1973 г. на ІІ н. о. на ВС; решение № 209 от 18 май 1982 г. по н. д. № 209/1982 г. на І н. о. на ВС; решение № 347 от 25 септември 2009 г. по н. д. № 372/2009 г. на І н. о. на ВКС; решение от 13 май 2011 г. по в. н. ч. х. д. № 179/2011 г. на Плевенския ОС; решение от 18 май 2010 г. по в. н. ч. х. д. № 209/ 2009 г. на Габровския ОС; решение № 41 от 30 юни 2010 г. по н. д. № 154/2010 г. на Кърджалийския ОС; решение от 16 декември 2009 г. по н. д. № 909/2009 г. на Добричкия ОС; присъда № 696 от 30 ноември 2009 г. по н. ч. х. д. № 3103/2009 г. на Варненския РС ), statements made in letters, petitions or complaints to State bodies containing allegations of wrongdoings or offences committed by other individuals cannot be considered as “dissemination of information” within the meaning of Article 147 of the Code because their authors ’ intention is not to degrade the honour or reputation of such individuals but simply to exercise their right of petition, to report irregularities or to request the authorities ’ assistance. Furthermore, in order to “impute an offence” to an individual, the author of the statement must be aware that that individual is innocent.

Under section 2 of Regulation No. 7 of 25 May 1992 concerning the sanitary requirements for the urban environment ( Наредба № 7 от 25 май 1992 г . за хигиенните изисквания за здравна защита на селищната среда ), applicable at the relevant time, “a public health protection zone” was the area between a source of emissions harmful to the environment and the site which required protection (residential dwelling or a building used for health or education purposes by children or the general public). Under section 3 of the same regulation production and commercial processes were divided into seven separate groups in accordance with the level of toxicity of their emissions. In particular, point 393 of Annex I to the regulation provided that printing houses had to be situated at least 50 metres from sites requiring protection. Annex II to the regulation dealt specifically and exclusively with outdoor electric switchgear and power.

COMPLAINT

The applicant complains under Article 10 of the Convention that he was convicted for having expressed his opinion on a question of clear public interest, such as environmental pollution and people ’ s health and well ‑ being, and for having sought protection from the authorities and support from other concerned citizens.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the characterisation of the applicant ’ s utterances as statements of fact, rather than value judgments, justified?